JUDGEMENT
A. INTRODUCTION & BACKGROUND
1. The Appellant, was charged, tried, and convicted before the Chief Magistrate's Court at Malindi in original Criminal Case No. E063 of 2022. He faced a primary charge of defilement contrary to Section 8(1) as read with Section 8(3) and Section 4 of the Sexual Offences Act No. 3 of 2006, and an alternative charge of committing an indecent act contrary to Section 11(1) of the Act.
2. By a judgment dated 21 st September 2023, the learned Trial Magistrate found the Appellant guilty, convicted him pursuant to Section 215 of the Criminal Procedure Code and subsequently sentenced him to a term of eight (8) years imprisonment.
3. Dissatisfied with the trial court's decision, the Appellant preferred this appeal by way of a Memorandum of Grounds of Appeal dated and filed on 4 th December 2023.
4. As a first appellate court, this Court is under a statutory obligation to reconsider and re-evaluate the entire body of evidence adduced before the trial court, both on matters of law and fact, so as to arrive at its own independent conclusion.
(a) The Particulars of the Charges
5. According to the formal Police Charge Sheet from Marafa Police Station, signed and stamped by the Officer in-charge (OCS) on 11 th October 2022, the Appellant belongs to the Giriama tribe and was apprehended without a warrant on 7 th October 2022.
6. He was formally presented to court on 11 th October 2022 and remained in custody throughout the trial. The formal charges preferred against the Appellant were structured as follows:
“COUNT I: DEFILEMENT CONTRARY TO SECTION 8 (1) & (3) AS READ WITH SECTION 4 OF THE SEXUAL OFFENCES ACT NO. 3 OF 2006.PARTICULARS OF OFFENCE: KAINGU JEFWA YAA: On the 12th day of December 2021 at Mayoye Village, in Magarini Sub-County within Kilifi County, intentionally and unlawfully caused his penis to penetrate the Vagina of R.K.K child aged 13 years.”
“ALTERNATIVE CHARGE: COMMITTING AN INDECENT ACT WITH A CHILD CONTRARY TO SECTION 11 (1) OF THE SEXUAL OFFENCES ACT NO. 3 OF 2006.PARTICULARS OF OFFENCE: KAINGU JEFWA YAA: On the 12th day of December 2021 at Mayoye Village, in Magarini Sub-County within Kilifi County, intentionally and unlawfully caused his penis to penetrate the Vagina of R.K.K child aged 13 years.”
B. SUMMARY OF EVIDENCE BEFORE THE TRIAL COURT
7. To prove its case, the Prosecution called four witnesses whose names and roles align with the witness list annexed to the police charge sheet.
8. The Complainant, PW1 (R.K.K., a minor), testified that the Appellant is her grandfather. She stated that on 12 th December 2021, while she was out fetching firewood at Mayoye Village in Magarini Sub-County, the Appellant attacked and defiled her. He thereafter threatened to kill her and leave her corpse behind if she disclosed the ordeal. PW1 narrated that the Appellant carried her to his house and laid her on his bed where the act occurred. Her brother subsequently threatened to tell their mother, to which the Appellant insolently told him to go ahead. PW1 was taken to the hospital by her mother and positively identified the Appellant in the dock.
9. PW2, Kache Kazungu Chengo, the Complainant’s mother, testified that the Appellant is her uncle. She stated that on 13th December 2021, she was informed by another child that her daughter had been attacked while fetching firewood. She lodged a report with the village elder and accompanied her daughter to Malindi Sub-County Hospital before the Appellant was arrested.
10. PW3, Faith Salama Mwinyi, confirmed from the clinical files at Malindi Sub-County Hospital that an examination of the Complainant revealed a torn hymen. She produced the Complainant's post-care report, treatment notes, P3 form (Prosecution Exhibit 3), and an age assessment report as Prosecution Exhibit 2.
11. PW4, PC Beth Kagendo of Marafa Police Station, was the investigating officer. She testified that PW2 reported the defilement on 15th December 2021. She noted that the Appellant caught wind of his impending arrest and went into hiding, evading capture for nearly ten months from the date of the offense until his arrest on 7th October 2022. She identified the Appellant in court, marking the close of the Prosecution case.
12. When placed on his defense, the Appellant elected to give a sworn testimony. He stated in Swahili;
“My name is Kaingu Jefwa Yaa. I know the complainant I see her. It is not true that I had sex with the girl. I never touched her, I never did anything to her. She is my relative. The mother is my relative. I am old and I have children in school.”
13. In essence, he denied committing the offence, maintained that the Complainant was his relative, and asserted that the criminal allegations against him were entirely fabricated.
C. THE MEMORANDUM OF GROUNDS OF APPEAL
14. In seeking to overturn the conviction and sentence, the Appellant set out the following three specific grounds in his Memorandum of Appeal:
i) That the learned trial magistrate erred in law and facts by failing to consider that there were massive invariances and inconsistencies in the entire case which did not warrant a safe conviction to the appellant.
ii) That the learned trial magistrate erred in both law and facts by failing to note that medical evidence of the Medical Doctor was not proved to sustain the conviction of the appellant.
iii) That the learned trial magistrate erred in law and facts by failing to note that the victim’s age was not properly established according to the law and statutes in the constitution (No proof of age of the victim).”
D. SUBMISSIONS BY PARTIES
15. The Appellant informed this honourable court that he will not file any submissions and that he would rely on the records of the lower court.
SUBMISSIONS BY THE RESPONDENT
16. In response to the appeal, the Respondent filed written submissions countering the Appellant’s grounds. Regarding Ground 1 on the alleged inconsistencies, the State robustly submitted that there were no contradictions in the evidence adduced by the four (4) prosecution witnesses. The Prosecution contended that the witnesses gave cogent, consistent, and corroborative evidence that was overwhelmingly against the Appellant.
17. To ground their argument on the legal effect of trial inconsistencies, the State relied on the binding jurisprudence of the Court of Appeal in Richard Munene v Republic [2018] eKLR, quoting the following principle:
“Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused. It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case.”
18. The State further highlighted that this Court, sitting as the first appellate court, must exercise its re-evaluation mandate within the parameters established in Okeno vs. R (1977) EALR 32 and Oiruri Mose vs. R (2013) eKLR. The State submitted that while this Court must evaluate the evidence afresh, it must keep in mind that the trial court had the distinct advantage of observing the demeanor of the witnesses firsthand and give proper allowance for minor, non-fatal gaps.
E. ISSUES FOR DETERMINATION
19. The grounds raised by the Appellant and the robust answers provided by the State narrow down to the standard three core ingredients required to sustain a conviction for the offence of defilement under the Sexual Offences Act:
i) Proof of the victim’s age;
ii) Proof of penetration; and
iii) Proof of identification or recognition of the perpetrator.
F. LEGAL ANALYSIS
(i) Proof of the Victim's Age
20. Under Ground 3, the Appellant contends that the Complainant's age was not properly established. As guided by the Court of Appeal in Edwin Nyambogo Onsongo vs. Republic [2016] eKLR, age can be demonstrated through medical evidence, documentary evidence, or the reliable oral testimonies of parents. In this matter, the particulars of the Charge Sheet explicitly state that the victim, R.K.K., was a child aged 13 years. This factual claim was fully supported by the Prosecution's age assessment certificate (Exhibit Pexh2), proving her minor status beyond any reasonable doubt. Ground 3 must therefore fail.
(ii) Proof of Penetration and Corroboration
21. Under Ground 2, the Appellant attacks the medical evidence. The legal standard regarding penetration, reiterated in DS vs. Republic [2022] eKLR, indicates that while medical corroboration is standard practice, the lack of definitive forensic data does not automatically defeat a child's consistent testimony.
22. Under Section 124 of the Evidence Act (Cap 80), a court can convict on the uncorroborated testimony of a sexual offence victim if it records its reasons and is entirely satisfied the victim is telling the truth. Here, however, the trial court had both: PW1’s clear testimony matching the precise particulars of the charge sheet and the medical testimony of PW3 establishing a torn hymen consistent with penile penetration. Ground 2 lacks merit.
(iii) Inconsistencies and Identification
23. Ground 1 of the appeal points to 'massive invariances and inconsistencies' in the prosecution's case. In evaluating this ground, this Court heavily resonates with the guidance from Richard Munene v Republic [2018] eKLR cited by the State. Gaps in testimonies only collapse a conviction if they touch on the very core of the offense. In this matter, the minor’s testimony was consistent on the central fact of penile penetration and was corroborated by the evidence of PW3.
24. On the issue of identification, this was a case of recognition, not identity of a stranger. PW1 explicitly recognized the Appellant as her grandfather, and PW2 verified the close familial relationship. Furthermore, the OCS Marafa Police Station's verification stamp dated 11 th October 2022 confirms the synchronization of the procedural flow following the arrest. The Appellant fled Mayoye Village immediately following the incident and went into hiding, evading arrest for ten months. As argued by the State, this conduct of absconding provides a powerful indicator of a guilty mind further anchoring the safety of the conviction. Ground 1 is therefore rejected.
25. In light of the submissions, this Court reiterates the fundamental duty of a first appellate court as famously stated in Okeno vs. Republic [1972] EA 32 and reaffirmed by the State's citation of Oiruri Mose vs. R [2013] eKLR . This Court must weigh conflicting evidence and make its own independent assessments, while remaining mindful that it did not have the advantage of seeing or hearing the witnesses firsthand. Having carefully conducted this exercise, the minor's testimony stands out as completely credible and unshaken and has been effectively corroborated by the other witnesses.
26. The alternative charge under Section 11(1) of the Sexual Offences Act stands spent as the primary count is fully substantiated.
(iv) legality of the sentence
27. While the conviction itself is entirely safe, this Court must address an egregious error of law apparent on the face of the record concerning the sentence. The Appellant was convicted of defiling a child who was 13 years old at the time of the offence.
28. Section 8(3) of the Sexual Offences Act explicitly mandates that a person who commits an offence of defilement with a child between the ages of twelve and fifteen years is liable upon conviction to imprisonment for a term of NOT LESS THAN TWENTY (20) YEARS.
29. The trial court's sentence of eight (8) years imprisonment falls drastically below the strict statutory minimum fixed by Law. An illegal sentence cannot be allowed to stand.
30. As a first appellate court seized with the complete jurisdiction to cure departures from statutory penal mandates, this Court is bound to substitute the trial court’s unlawful sentence with the mandatory statutory minimum.
FINAL ORDERS
31. In view of the foregoing, the Court issues the following orders:
(a) The appeal against the conviction is hereby dismissed, and the conviction for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act is affirmed.
(b) The appeal against the sentence is rejected; the trial court's sentence of eight (8) years imprisonment is hereby set aside for being illegal and incompetent.
(c) In substitution thereof, the Appellant is hereby sentenced to serve a term of twenty (20) years imprisonment. This sentence shall run from the date of his original conviction by the trial court, being 21 st September 2023 with credit given for the period spent in custody from the day of arrest.
It is so ordered.
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A. INTRODUCTION & BACKGROUND
1. The Appellant, was charged, tried, and convicted before the Chief Magistrate's Court at Malindi in original Criminal Case No. E063 of 2022. He faced a primary charge of defilement contrary to Section 8(1) as read with Section 8(3) and Section 4 of the Sexual Offences Act No. 3 of 2006, and an alternative charge of committing an indecent act contrary to Section 11(1) of the Act.
2. By a judgment dated 21 st September 2023, the learned Trial Magistrate found the Appellant guilty, convicted him pursuant to Section 215 of the Criminal Procedure Code and subsequently sentenced him to a term of eight (8) years imprisonment.
3. Dissatisfied with the trial court's decision, the Appellant preferred this appeal by way of a Memorandum of Grounds of Appeal dated and filed on 4 th December 2023.
4. As a first appellate court, this Court is under a statutory obligation to reconsider and re-evaluate the entire body of evidence adduced before the trial court, both on matters of law and fact, so as to arrive at its own independent conclusion.
(a) The Particulars of the Charges
5. According to the formal Police Charge Sheet from Marafa Police Station, signed and stamped by the Officer in-charge (OCS) on 11 th October 2022, the Appellant belongs to the Giriama tribe and was apprehended without a warrant on 7 th October 2022.
6. He was formally presented to court on 11 th October 2022 and remained in custody throughout the trial. The formal charges preferred against the Appellant were structured as follows:
“COUNT I: DEFILEMENT CONTRARY TO SECTION 8 (1) & (3) AS READ WITH SECTION 4 OF THE SEXUAL OFFENCES ACT NO. 3 OF 2006.PARTICULARS OF OFFENCE: KAINGU JEFWA YAA: On the 12th day of December 2021 at Mayoye Village, in Magarini Sub-County within Kilifi County, intentionally and unlawfully caused his penis to penetrate the Vagina of R.K.K child aged 13 years.”
“ALTERNATIVE CHARGE: COMMITTING AN INDECENT ACT WITH A CHILD CONTRARY TO SECTION 11 (1) OF THE SEXUAL OFFENCES ACT NO. 3 OF 2006.PARTICULARS OF OFFENCE: KAINGU JEFWA YAA: On the 12th day of December 2021 at Mayoye Village, in Magarini Sub-County within Kilifi County, intentionally and unlawfully caused his penis to penetrate the Vagina of R.K.K child aged 13 years.”
B. SUMMARY OF EVIDENCE BEFORE THE TRIAL COURT
7. To prove its case, the Prosecution called four witnesses whose names and roles align with the witness list annexed to the police charge sheet.
8. The Complainant, PW1 (R.K.K., a minor), testified that the Appellant is her grandfather. She stated that on 12 th December 2021, while she was out fetching firewood at Mayoye Village in Magarini Sub-County, the Appellant attacked and defiled her. He thereafter threatened to kill her and leave her corpse behind if she disclosed the ordeal. PW1 narrated that the Appellant carried her to his house and laid her on his bed where the act occurred. Her brother subsequently threatened to tell their mother, to which the Appellant insolently told him to go ahead. PW1 was taken to the hospital by her mother and positively identified the Appellant in the dock.
9. PW2, Kache Kazungu Chengo, the Complainant’s mother, testified that the Appellant is her uncle. She stated that on 13th December 2021, she was informed by another child that her daughter had been attacked while fetching firewood. She lodged a report with the village elder and accompanied her daughter to Malindi Sub-County Hospital before the Appellant was arrested.
10. PW3, Faith Salama Mwinyi, confirmed from the clinical files at Malindi Sub-County Hospital that an examination of the Complainant revealed a torn hymen. She produced the Complainant's post-care report, treatment notes, P3 form (Prosecution Exhibit 3), and an age assessment report as Prosecution Exhibit 2.
11. PW4, PC Beth Kagendo of Marafa Police Station, was the investigating officer. She testified that PW2 reported the defilement on 15th December 2021. She noted that the Appellant caught wind of his impending arrest and went into hiding, evading capture for nearly ten months from the date of the offense until his arrest on 7th October 2022. She identified the Appellant in court, marking the close of the Prosecution case.
12. When placed on his defense, the Appellant elected to give a sworn testimony. He stated in Swahili;
“My name is Kaingu Jefwa Yaa. I know the complainant I see her. It is not true that I had sex with the girl. I never touched her, I never did anything to her. She is my relative. The mother is my relative. I am old and I have children in school.”
13. In essence, he denied committing the offence, maintained that the Complainant was his relative, and asserted that the criminal allegations against him were entirely fabricated.
C. THE MEMORANDUM OF GROUNDS OF APPEAL
14. In seeking to overturn the conviction and sentence, the Appellant set out the following three specific grounds in his Memorandum of Appeal:
i) That the learned trial magistrate erred in law and facts by failing to consider that there were massive invariances and inconsistencies in the entire case which did not warrant a safe conviction to the appellant.
ii) That the learned trial magistrate erred in both law and facts by failing to note that medical evidence of the Medical Doctor was not proved to sustain the conviction of the appellant.
iii) That the learned trial magistrate erred in law and facts by failing to note that the victim’s age was not properly established according to the law and statutes in the constitution (No proof of age of the victim).”
D. SUBMISSIONS BY PARTIES
15. The Appellant informed this honourable court that he will not file any submissions and that he would rely on the records of the lower court.
SUBMISSIONS BY THE RESPONDENT
16. In response to the appeal, the Respondent filed written submissions countering the Appellant’s grounds. Regarding Ground 1 on the alleged inconsistencies, the State robustly submitted that there were no contradictions in the evidence adduced by the four (4) prosecution witnesses. The Prosecution contended that the witnesses gave cogent, consistent, and corroborative evidence that was overwhelmingly against the Appellant.
17. To ground their argument on the legal effect of trial inconsistencies, the State relied on the binding jurisprudence of the Court of Appeal in Richard Munene v Republic [2018] eKLR, quoting the following principle:
“Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused. It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case.”
18. The State further highlighted that this Court, sitting as the first appellate court, must exercise its re-evaluation mandate within the parameters established in Okeno vs. R (1977) EALR 32 and Oiruri Mose vs. R (2013) eKLR. The State submitted that while this Court must evaluate the evidence afresh, it must keep in mind that the trial court had the distinct advantage of observing the demeanor of the witnesses firsthand and give proper allowance for minor, non-fatal gaps.
E. ISSUES FOR DETERMINATION
19. The grounds raised by the Appellant and the robust answers provided by the State narrow down to the standard three core ingredients required to sustain a conviction for the offence of defilement under the Sexual Offences Act:
i) Proof of the victim’s age;
ii) Proof of penetration; and
iii) Proof of identification or recognition of the perpetrator.
F. LEGAL ANALYSIS
(i) Proof of the Victim's Age
20. Under Ground 3, the Appellant contends that the Complainant's age was not properly established. As guided by the Court of Appeal in Edwin Nyambogo Onsongo vs. Republic [2016] eKLR, age can be demonstrated through medical evidence, documentary evidence, or the reliable oral testimonies of parents. In this matter, the particulars of the Charge Sheet explicitly state that the victim, R.K.K., was a child aged 13 years. This factual claim was fully supported by the Prosecution's age assessment certificate (Exhibit Pexh2), proving her minor status beyond any reasonable doubt. Ground 3 must therefore fail.
(ii) Proof of Penetration and Corroboration
21. Under Ground 2, the Appellant attacks the medical evidence. The legal standard regarding penetration, reiterated in DS vs. Republic [2022] eKLR, indicates that while medical corroboration is standard practice, the lack of definitive forensic data does not automatically defeat a child's consistent testimony.
22. Under Section 124 of the Evidence Act (Cap 80), a court can convict on the uncorroborated testimony of a sexual offence victim if it records its reasons and is entirely satisfied the victim is telling the truth. Here, however, the trial court had both: PW1’s clear testimony matching the precise particulars of the charge sheet and the medical testimony of PW3 establishing a torn hymen consistent with penile penetration. Ground 2 lacks merit.
(iii) Inconsistencies and Identification
23. Ground 1 of the appeal points to 'massive invariances and inconsistencies' in the prosecution's case. In evaluating this ground, this Court heavily resonates with the guidance from Richard Munene v Republic [2018] eKLR cited by the State. Gaps in testimonies only collapse a conviction if they touch on the very core of the offense. In this matter, the minor’s testimony was consistent on the central fact of penile penetration and was corroborated by the evidence of PW3.
24. On the issue of identification, this was a case of recognition, not identity of a stranger. PW1 explicitly recognized the Appellant as her grandfather, and PW2 verified the close familial relationship. Furthermore, the OCS Marafa Police Station's verification stamp dated 11 th October 2022 confirms the synchronization of the procedural flow following the arrest. The Appellant fled Mayoye Village immediately following the incident and went into hiding, evading arrest for ten months. As argued by the State, this conduct of absconding provides a powerful indicator of a guilty mind further anchoring the safety of the conviction. Ground 1 is therefore rejected.
25. In light of the submissions, this Court reiterates the fundamental duty of a first appellate court as famously stated in Okeno vs. Republic [1972] EA 32 and reaffirmed by the State's citation of Oiruri Mose vs. R [2013] eKLR . This Court must weigh conflicting evidence and make its own independent assessments, while remaining mindful that it did not have the advantage of seeing or hearing the witnesses firsthand. Having carefully conducted this exercise, the minor's testimony stands out as completely credible and unshaken and has been effectively corroborated by the other witnesses.
26. The alternative charge under Section 11(1) of the Sexual Offences Act stands spent as the primary count is fully substantiated.
(iv) legality of the sentence
27. While the conviction itself is entirely safe, this Court must address an egregious error of law apparent on the face of the record concerning the sentence. The Appellant was convicted of defiling a child who was 13 years old at the time of the offence.
28. Section 8(3) of the Sexual Offences Act explicitly mandates that a person who commits an offence of defilement with a child between the ages of twelve and fifteen years is liable upon conviction to imprisonment for a term of NOT LESS THAN TWENTY (20) YEARS.
29. The trial court's sentence of eight (8) years imprisonment falls drastically below the strict statutory minimum fixed by Law. An illegal sentence cannot be allowed to stand.
30. As a first appellate court seized with the complete jurisdiction to cure departures from statutory penal mandates, this Court is bound to substitute the trial court’s unlawful sentence with the mandatory statutory minimum.
FINAL ORDERS
31. In view of the foregoing, the Court issues the following orders:
(a) The appeal against the conviction is hereby dismissed, and the conviction for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act is affirmed.
(b) The appeal against the sentence is rejected; the trial court's sentence of eight (8) years imprisonment is hereby set aside for being illegal and incompetent.
(c) In substitution thereof, the Appellant is hereby sentenced to serve a term of twenty (20) years imprisonment. This sentence shall run from the date of his original conviction by the trial court, being 21 st September 2023 with credit given for the period spent in custody from the day of arrest.
It is so ordered.
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